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Lord Davies of Oldham: The noble Baroness, Lady Buscombe, was somewhat dismissive of the response of the Minister in another place when he defended the position in the Bill because the drafting was designed to maintain the current wide scope of protection provided by the Broadcasting Act 1990, which, I stress to the Committee, contains no qualification limiting the scope of the code governing standards and practice in advertising.

I listened carefully to all contributions to this short debate, not least because it was moved so forcefully by my noble friend. No one made any comment on the nature of broadcasting and the concept of the watershed. The noble Lord, Lord Borrie, indicated that such advertising campaigns go across a range of media. Broadcasting has a specific consideration to take into account: a particular target audience and a particular time of the day at which audiences are influenced and open to—

Lord Borrie: I do not like to interrupt the noble Lord but the phrase in Clause 312(2)(g) is very broad. It refers to,

Surely that means not just matters relating to timing and audience but the words and images presented by the advertising.

Lord Davies of Oldham: Of course the phrase is broad. It must be broad so that control of broadcasting can take account of different times of the day and different audiences who are being approached by the advertisers.

Lord Gordon of Strathblane: I apologise for interrupting again so quickly. Is the Minister suggesting that the present legislation, which does not contain the word "unsuitable" but merely goes for the words for which I am seeking, is somehow deficient? How have we got by for the past 20 years?

Lord Davies of Oldham: I am arguing that we need some breadth to the position. Limitations are being identified and words and concepts that give some precision are being specified. I recognise the value of precision. I stress that the problem with regard to the

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Bill is that it deals with the media. For example, the concept "harmful" might apply quite strongly at certain times of the day with a very young audience but have no application at all at 11.30 p.m. when only adults are watching.

So what the Minister said in another place, and what we are defending in the Bill at the present time, is that there is a proper reason for retaining the concept of "unsuitable". It gives a breadth, which I recognise that my noble friends object to, which improves the position. That is against the background that the codes will be established on the basis of the fullest consultation with those affected in the industry. No one is suggesting that the concepts will be handed down as the laws of the Medes and the Persians. In fact they will be working codes on the basis of consultation. I am merely indicating that the underlying concept that we work into the Bill should have some breadth to it. That is why the phrase "unsuitable" is used. It is broader than the concepts that my noble friend seeks to introduce with his amendment.

Baroness Howe of Idlicote: I thank the Minister for giving way. I want to question what he said. In my reply I clearly indicated the differing times of the day when advertisements would be shown—I meant, without spelling it out, the watershed. The words "harmful or offensive" are clearer than "unsuitable". They are more specific, and even though both of them are interpreted in the eye of the beholder, it is the circumstances in which they are interpreted, I would have thought, that is what matters, with the greatest respect. "Unsuitable" is pretty vague.

Lord Davies of Oldham: The noble Baroness has merely emphasised the nub of the discussion. I object to my noble friend's amendment, which introduces wording that is more specific in terms of how the codes would operate. I am seeking greater breadth, because I believe that broadcasting has different obligations from other advertising media. We have had breadth with regard to the way in which broadcasting has been controlled since the 1990 Act, when the three concepts were built into the Act. We are merely sustaining the position that we ought to have that breadth as the basis for the codes that will control advertising for broadcasting, because of the different nature of broadcasting and the different audiences at which it is targeted at different times of the day. That is the basis of the Government's contention.

I hear that I am far from persuading both my noble friends and other contributors to this debate. However, let me make the obvious point—it is not for me to judge what should or should not be allowed, but it is right that the advertising codes are developed like the general standards code to reflect public attitudes as to what is acceptable in the specific medium of broadcasting. The Bill is concerned with the broadcasting media and it is a specific aspect that we need to deal with. So I hear what my noble friend has said, but I ask him to reflect on the issues. We are at Committee stage. I recognise that there are later stages

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of the Bill, but we regard the position adopted by my honourable friend in another place, which I am seeking to sustain today, as the best means of providing the necessary protection for broadcasting, which is different from advertising in other media.

Lord Gordon of Strathblane: I thank the Minister for his reply. At the lateness of the hour I am in danger of becoming short-tempered. I am extremely disappointed that on yet another matter on which every single speaker representing a wide range of interests, and every possible body that Ofcom would consult with, expresses one view. The Government opt obdurately for another and cling to a rather poor defence put up by the Minister in another place.

However, it would be wrong to press the amendment at this stage and I shall not do so. We are taking a long time in Committee and we shall take even longer on Report if we are to have Divisions on amendment after amendment which the Government have refused to accept at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No. 260:

    Page 276, line 2, at end insert—

"( ) Before drawing up or revising the codes, OFCOM shall have regard to the extent to which matters they are required to secure under this section are, or may be, secured by effective self-regulation; and, in the light of that, to consider to what extent it would be appropriate not to draw up, modify or withdraw a code under this section.
( ) In determining for the purposes of this section whether procedures for self-regulation are effective, OFCOM may take account not only of self-regulation independent of those to whom it applies, but also of the extent to which the matters to be secured under this section are being, and are likely to be, secured without the further imposition of a code."

The noble Baroness said: In moving Amendment No. 260, I shall speak also to Amendment No. 261.

Subsection (3) of Clause 312 requires that:

    "The standards set by OFCOM under this section must be contained in one or more codes".

The purpose of the amendment is to make it clear that as regards its codes Ofcom has the option of, first, drawing up or revising its own codes; secondly, contracting them out to an effective self-regulatory system, as Ofcom may do with any of its functions under Clauses 1(7) and 6(2); or, thirdly, reviewing the possibility of removing or reducing regulatory burdens under Clause 6(1) where they are no longer necessary.

Both contracting out and the explicit duty to review and reduce regulatory burdens where possible are an important change of regulatory approach and it would be helpful to make both principles explicit in relation to Clause 312.

A similar amendment was proposed by my honourable friend Andrew Lansley during the Commons Committee stage. In the discussions in Grand Committee E on 28th January (at col. 785 of the Official Report), he said that it was important to clarify not only that Ofcom could contract out codes for self-regulation, but to require that Ofcom keep the scope

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of its codes under consideration. The Minister in his response was not entirely clear that the ownership of codes could be contracted out to self-regulatory bodies, but unless this is achieved—with Ofcom retaining backstop powers—there is little meaning to the "self" in "self-regulation".

By way of example, as has already been mentioned in previous debates, an Advertising Association task force representing broadcasters and the advertising business has recently put forward a proposal to Ofcom to contract out broadcasting advertising to a self-regulatory system, using the tried and tested model of the Advertising Standards Authority.

One of the objectives of the advertising industry in so doing is to address the challenges of media convergence which will increasingly reduce the rationale for entirely separate systems of advertising regulation—self-regulation for non-broadcast advertising and statutory regulation for broadcast advertising. Another objective is to provide consumers with a one-stop shop for complaints about advertising across all media.

Part of the proposal is that Ofcom should contract out to an agreed self-regulatory system the ownership of the broadcast advertising codes. Again, this is modelled on the much-respected ASA/CAP system for non-broadcast advertising in which CAP—the industry Committee of Advertising Practice—owns, administers and enforces the codes. Unlike the current self-regulatory system for non-broadcast advertising, the proposal envisages that Ofcom would have to approve any code changes as it is recognised that, in accordance with the Bill, a co-regulatory relationship with Ofcom would exist.

This amendment would make it clear that codes could be contracted out. The second part of the amendment reinforces the principle of Clause 6(1) which requires Ofcom to review regulatory burdens and lift them where appropriate.

Clause 317 sets out Ofcom's duties in relation to the publication of, and consultation on, draft codes. Amendment No. 261 replaces "after publishing" the draft code in line 14, subsection (3) with "in the preparation of any" code, Ofcom must consult. The purpose of the amendment is not, as the Minister, Dr Kim Howells, in another place assumed during Commons Committee stage on 28th January, to place difficulties in the way of Ofcom acting expeditiously to undertake its regulatory functions, but instead to reflect recent regulatory working practices and to ensure maximum transparency.

We do not think this places a statutory obligation on Ofcom to go through two stages of consultation before setting standards, as suggested by the Minister, Dr Kim Howells. It just creates maximum flexibility, allowing Ofcom to take soundings as it develops its thinking.

There is some concern in the advertising industry that the current wording of subsection (3)—

    "after publishing the draft code"—

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could reverse the transparency that has been introduced in recent years; for example, at the ITC. Previously the advertising business found that, unlike broadcast licensees, it was rarely alerted to the likelihood of a code being changed until the draft code was published. By then it was difficult to change views, which meant that advertisers were no more than passive spectators, a position they found unreasonable since without their funding commercial broadcasting would not exist.

It is important to ensure that Ofcom works transparently in relation to the advertising industry as well as its licensees by involving this sector in formal and informal discussions about codes at all stages, rather than only giving this sector the opportunity to comment at the formal consultation stage when views are already set out on the overall direction to be taken. The purpose of this amendment is therefore to establish that the advertising sector would be party, like licensees, to the ongoing discussions which regulators have as a matter of course with the various parts of the industry and with consumer groups. I beg to move.

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